State v. Isham, S
| Decision Date | 25 November 1975 |
| Docket Number | No. S,S |
| Citation | 70 Wis.2d 718,235 N.W.2d 506 |
| Parties | STATE of Wisconsin, Respondent, v. Michael James ISHAM, Appellant. tate 162. |
| Court | Wisconsin Supreme Court |
Coffey, Murray & Coffey, Milwaukee (William M. Coffey, William U. Burke, Milwaukee, of counsel), for appellant.
Bronson C. LaFollette, Atty. Gen. and Michael R. Klos, Asst. Atty. Gen., Madison, for respondent.
One-half hour after the commission of a rape, the defendant, who fit the description of the rapist given by the victim, was found walking with untied shoes two and one-half blocks from the scene of the crime. He was taken to the home where the rape occurred for a confrontation with the victim of the crime for identification purposes. The victim of the rape identified the defendant as the rapist, first by hearing his voice, then by observing his person. Several challenges are made to the procedure followed and each such challenge will be separately reviewed.
ONE-TO-ONE. We have here an on-the-scene confrontation, proximate in time and space to the crime committed. Necessarily, it involved only the victim of the crime and the person suspected of committing the crime. The defendant finds constitutional infirmity or per se suggestiveness in its one-to-one aspect. However, this exact police procedure was upheld by this court in the recent case of Johnson v. State. 1 There, following the robbery of a grocery store, a defendant who generally fitted the description given by the store owner and who was in the area soon after the time of the crime, was taken by the police to the scene of the crime. There he was identified as the robber by the store owner who looked at him through the store window. Our court held 'entirely reasonable' the procedure followed, 2 giving as one reason for so concluding the fact that '. . . the identification took place soon after the incident while the memory of the witness was still fresh,' 3 quoting a federal appeals court decision holding that such circumstances of fresh identification 'promote fairness, by assuring reliability.' 4 A one-to-one identification is not, by such fact alone, rendered either suggestive or impermissible. We find the procedure for on-the-scene identification entirely proper as a one-to-one identification.
However, the defendant here goes further to suggest that the police were here obliged to conduct a staged lineup at the police station for any visual identification. Defendant's brief states that the police None was required. Our court has nagatived the idea that either a one-to-one or one-out-of-a-crowd identification is, ipso facto, suggestive. 5 Our court has recognized the appropriateness in some situations of what it termed 'a police station 'showup' or one-to-one identification.' 6 In fact, in the Johnson Case, the second reason given for upholding on-the-scene identifications was that '. . . imposing staged line-up requirements would require that all suspects be taken to a station house and held while identification at the scene could possibly allow a citizen to be on his way and enable the police to continue their efforts.' 7 If there is any preference to be implied, it is for the on-the-scene identification approach rather than at-the-station or staged-lineup confrontation.
UNDER THE CIRCUMSTANCES. Aside from the one-to-one character of the identification, the defendant claims suggestiveness in the special circumstances under which this particular identification was conducted. The reference is primarily to the fact that the police officers told the victim that the person whose voice she was about to hear was a 'suspect.' That fact must have been obvious without mention. The police would not ask a victim to identify a person as a perpetrator of a crime if the police did not believe that such person was at least a 'suspect' or possible perpetrator of the crime. Where photographs were handed to a victim with a police officer stating, 'I believe the person would be in it,' our court found no impermissible suggestiveness, stating: 'In the very act of handing photographs to an attack victim it is implied that the attacker's picture could be among them . . ..' 8 In fact, the issue to be decided is not so much a matter of suggestiveness as it is 'whether, under the totality of the circumstances, the identification was reliable.' 9 In the case before us, we see no way in which the statements complained of could, or did, affect in any way or manner the reliability of the identification made.
PROBABLE CAUSE. Here the police took three separate steps: (1) They stopped the defendant on the street for questioning; (2) they detained him for a confrontation with the victim of the crime; and (3) they placed him under arrest on a charge of rape after he had been identified by the victim. When the police stopped the defendant for questioning, they 'clearly placed his liberty, at least to keep on walking, under their will and control.' 10 But he was not thus and then placed 'under arrest.' 11 When the circumstances, plus his responses to interrogatories, made reasonable further investigation through a confrontation with the victim of the crime in the nearby house, the defendant remained in police custody, even though he was not then placed under arrest for the commission of a criminal offense. As the United States Supreme Court has observed: ". . . It would have been poor police work indeed for an officer . . . to have failed to investigate this behavior further." 12 The United States Supreme Court has held that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." 13 It follows, we believe and hold, that, in appropriate circumstances and in an appropriate manner, the police may continue the detention of a person thus questioned for the purpose of a confrontation with the victim of a crime that was proximate in time and space. In a similar situation, our court has upheld the taking of persons in the immediate vicinity to the victim of a crime for the investigative purpose of determining if any of them might be identified as the perpetrators of the crime. 14 The test as to the right to continue custody is then, not probable cause to arrest, 15 but reasonable grounds for thus continuing the investigative effort. The question to be asked it, 'Was it reasonable under these circumstances for the police to take the defendant two and on-half blocks to the scene of the crime for the purpose of a confrontation for identification purposes?' In answering this question it is "all of the circumstances that are to be considered in determining what was reasonable police procedure in the particular situation." 16
The distinction as to the status of one continued in police custody for the investigative purpose of a confrontation with the victim of a crime, proximate in time and space, and the status of one placed under arrest for the commission of a crime is not highly material in the case before us because the police officer who stopped the defendant for questioning clearly had reasonable grounds for continuing the investigation and probable cause to place the defendant under arrest. At the time of the stopping, the police officer had been advised over the police radio that a break-in of a home two and one-half blocks from where the defendant was walking had occurred. He had been given a description of the suspected assailant as a man with shortsleeved shirt or sweater, dark pants and barefooted. He observed the defendant as wearing a blue knit sweater with three-quarter length sleeves, dark blue pants and wearing work shoes that had the laces untied. He observed blood on the defendant's nose and shirt and noted the strong smell of alcohol on defendant's breath. The defendant was asked if he lived in the area, and answered that he did not. The defendant could provide no explanation for his being in the neighborhood at the midnight hour, nor as to his means of transportation for getting there. Given these facts and circumstances, with the defendant found walking with untied shoes two and one-half blocks from the scene of the crime and fitting the general description of the person suspected, the police officer has ample grounds to insist upon the confrontation and had probable cause to place the defendant under arrest at that time. The surrounding circumstances would certainly lead a reasonable police officer to conclude that defendant's guilt was 'more than a possibility.' 17
SELF-INCRIMINATION. Defendant's contention is that the conceded absence of Miranda warnings 18 prior to the voice and visual identification renders such identifications constitutionally infirm. It is conceded that the Miranda requirement applies only to evidence of a 'testimonial or communicative nature.' 19 Defendant argues that, since the voice identification stemmed from his answering the questions as to his name and address, it was evidence of a 'testimonial or communicative nature.' It is true that the voice of the defendant was used, but as to 'an identifying physical characteristic, not to speak his guilt.' 20 The United States Supreme Court has made clear that the privilege against self-incrimination ". . . offers no protection against compulsion no submit to fingerprinting, photographing, or measurements, to write to speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." 21 The phrase underlined describes the situation in the case before us. The privilege as to not incirminating oneself does not reach to words spoken, not for content, but to demonstrate the voice level and voice characteristics. The Miranda requirements relate only to the privilege against self-incrimination. ...
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